Delhi District Court
M/S Glory Construction (P) Ltd vs Sh. Lady Sir Shobha Singh Educational on 5 March, 2011
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 12.02.1996
Judgment reserved on : 28.02.2011
Judgment delivered on : 05.03.2011
Suit No. 000384/08/96 Unique Case ID No. 02401C0861122003
M/s Glory Construction (P) Ltd.,
A company incorporated under the
Companies Act Having Its Registered
Office at A4/1, Sector XIV, Rohini Delhi
Through its Director Sh. T.R. Anand.
... Plaintiff
Versus
1. Sh. Lady Sir Shobha Singh Educational
& Charitable Trust
Through its Founder and Chairman,
Sardar Daljit Singh,
2. Sardar Daljit Singh
s/o Late Sir Sobha Singh
3. Smt. Amarjit Kaur
w/o Sh. Sardar Daljit Singh.
4. Sh. N.S. Suri
s/o of Sh. M.S. Suri.
All r/o G74, Sujan Singh Park, New Delhi110003. ... Defendants
J U D G M E N T
1. This is a suit for declaration and permanent injunction.
2. In brief, the facts as brought in the plaint in narrow compass are that the plaintiff is a Private Ltd. Company incorporated under the Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 1 Companies Act, having its registered office at Delhi and Sh. T. R. Anand, the Managing Director of the plaintiff company was the authorized person who signed, verified and instituted the suit.
3. The defendant trust is the owner of the property bearing No. D
- 74, Regal Building, Connaught Circus, New Delhi, hereinafter called as the suit property.
4. The defendant had agreed to sale the suit property to the plaintiff, vide agreement to sell dated 06.11.1986 for a total consideration of Rs. 18 Lacs (Rs. 18,00,000/), out of which an amount of Rs. 25,000/ was paid as an earnest money and the balance amount was to be paid within 6 months. On 01.05.1987, the balance sale consideration amount of Rs. 17.75 Lacs was paid to the defendant, whereupon another sale agreement dated. 01.05.1987 was executed and the possession of the suit property was also handed over to the plaintiff.
5. A registered General Power of Attorney dated. 19.03.1990 (hereinafter referred as GPA) was also executed in favour of Sh. T. R. Anand, authorising him to manage the suit property, and also to possess and enjoy all the ownership rights in respect of the property. Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 2
6. On the basis of the Sale agreement between the parties, the mutation was applied by the plaintiff and a Transfer Duty of Rs. 32,000/ was paid to NDMC. On 04.05.1988, the suit property was transferred in the name of the plaintiff by NDMC, and as even, thereafter, NDMC made assessment in the name of the defendant, thereafter on assessment of the suit, they raised objections dated. 12.02.1991 saying that their name may be deleted from the Property Tax records, as the suit property has been sold, transferred and mutated in the name of the plaintiff.
7. On 13.07.1995, the defendant through its Advocate issued notice revoking the GPA dated. 01.05.1987, and thereafter, started interfering with the peaceful enjoyment of the suit property, which called for filing of the suit, praying for a declaration that the GPA was irrevocable, legal and valid and that the Revocation Notice dt. 13.07.1995 was illegal and invalid and also praying for a decree of permanent injunction, restraining the defendant and their agents etc. from interfering in peaceful possession of the suit property.
8. The defendant in the contra pleadings in the form of written statement has contested the suit, raising preliminary objection regarding locusstandi of the plaintiff to file the suit and also on merits saying that Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 3 the agreements of sale, on the basis of which, the plaintiff claims to have acquired the suit property, are not binding and enforceable against the defendant, which is a Public Charitable Trust, and thus prayed for dismissal of the suit.
9. On the basis of the pleadings, vide order dated 20.03.2003, the following issues were framed:
i). Whether the defendants are entitled to transfer all their rights, title and interests in the suit property to the plaintiff? (OPP).
ii). Whether the defendants have right to revoke the power of attorney dated 19th March, 1990 vide letter dated 13th July, 1995? If so, its effect.(OPD/OPP).
iii).Whether the agreements for sale are not binding upon and enforceable against the defendant No.1? (OPD).
iv).Whether the plaintiff has not performed part of his obligation under the alleged agreement to sell? If so, its effect.(OPD).
v). Relief.
10. For proving the case, the plaintiff has produced three witnesses. One Sh. T.R. Anand as PW1 by way of an affidavit Ex.PW 1/A, who exhibited the documents Ex.PW1/1 to Ex.PW1/12. Ex.PW Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 4 1/1 is the copy of resolution. Ex.PW1/2 is the original agreement to sell dated 06.11.1996. Ex.PW1/3 is the photocopy of the certificate. Ex.PW 1/4 is the photocopy of agreement to sell dated 01.05.1987. Ex.PW1/5 is the photocopy of GPA, whereas Ex.PW1/6 is the receipt. Ex.PW1/7 is the copy of notice dated 12.03.1990 and Ex.PW1/8 is the copy of letter dated 12.02.1991. Ex.PW1/9 is the copy of order dated 2/4/1999 and Ex.PW 1/10 is the notice dated 13.07.1995. Ex.PW1/11 is the photocopy of order dated 26.1.1995 and Ex.PW1/12 is copy of letter dated 8.11.1995.
11. PW 2 Ms. Gulshan Bajaj has proved only one document Ex.PW2/1. PW3 Sh. K.K. Sharma, the local commissioner has exhibited his report Ex.PW3/1. PW4 Sh. Kewal Dass was the official witness, who has proved the endorsement of Rs.32,000/ at entry No.12 dated January 1992 at Transfer duty register.
12. To prove his defence, the defendant has examined only one witness DW1 Sh. N.S. Suri, who proved Trust Deed dated 19.11.1969 as DW1/1 and deed of settlement dated 31st March, 1970 as DW1/2. Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 5
13. I have heard the arguments addressed by Ld. Counsel Sh. P.K. Dham for the plaintiff and Ld. Counsel Sh. Bakshi Shri Rang Singh for the defendant.
14. It is submitted on behalf of plaintiff that the defendant was the owner of the suit property, and vide agreement to sell dated 6.11.1986 had agreed to sell the suit property for a total consideration of Rs.18.00 lacs, and whereas an earnest money of Rs.25,000/ was received with the stipulation that the balance amount of sale was to be paid within six months, which on 1st May, 1987 also stood paid, whereafter, another sale agreement dated 01.05.1987 was executed. A general power of attorney dated 19.03.1980 was executed containing a stipulation in clause 21 that `the said attorney was irrevocable', thus, the defendant was not authorized to revoke such GPA vide its notice dated 13.07.1995, thus the revocation was bad in law, thus, prayed for declaration of the GPA dated 19.03.1990 to be irrevocable. They also prayed for permanent injunction as a consequential relief with respect to the suit property, placing reliance on the judicial opinion expressed in the following authorities: I. Seth Laon Karan Sethiya Vs. Ivan E. John and ors. AIR 1969 SC 73 II. Harbans Singh Vs. Shanti Devi, 1977 RLR 487 III. Ramesh Mohan Vs. Raj Krishan & Ors., Vol. LXXXVI 1984 PLR 211 IV.Prem Raj Vs. Babu Ram, 1991 RLR 458 .
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 6
15. Ld. Counsel Sh. Bakshi Shri Rang Singh for the defendant has vehemently countered the arguments addressed by the ld. Counsel for the plaintiff submitting that in terms of Section 47 & 48 of the Trust Act, all the Trustees have to act jointly with respect to any decision or act, to have effect on law, with respect to execution of any document on behalf of the Trust.
16. He has further submitted that Section 53 of Transfer of Property Act, cannot validate a contract, which is otherwise not valid in any other law, and the contract under reference, vide two agreements to sell, on which the case of the plaintiff is based, cannot take effect of law, as neither the agreements to sell were executed by all the Trustees nor the GPA in favour of the plaintiff was executed by all of them. Thus by the notice of revocation, the defendant Trust has validly revoked the GPA dated 19.03.1990 vide its notice dated 13.07.1995.
17. In support of his submissions he has relied on the law settled in the following cases:
i) Janakirama Iyer & Ors. Vs. P. M. Nilkanta Iyer & Ors. AIR 1962 SC 633
ii) Duli Chand Vs. Mahaveer Pershad Trilok Chand Charitable Trust, AIR 1984 Delhi 145
iii) Akram Mea Vs. Secuderaad Municipal Corporation. AIR 1957 ANDH. Pra. 859 Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 7
18. The issuewise findings of this Court are as follows:
Issue No. 1.
Whether the defendants are entitled to transfer all their rights, title and interests in the suit property to the plaintiff? (OPP).
The onus of proving this issue is laid on the plaintiff.
19. For proving this issue, the plaintiff has pleaded and has solemnly affirmed through the affidavit Ex. PW1/A of Sh. T. R. Anand that the defendants had agreed to sale the suit property on 06.11.1986 for the total consideration of Rs. 18 Lacs vide Agreement to Sell dt. 06.11.1986, which is Ex. PW1/2.
20. It was further deposed that an earnest money of Rs. 25,000/ was paid on the date of agreement, and the parties sought a permission under Section 269 UL of the Income Tax Act 1961 on 20.11.1986, which was granted on 28.01.1987 vide Certificate Ex. PW1/3. It is further deposed that the balance sale consideration of Rs. 17.75 Lacs was paid to the defendants on 01.05.1987, and the defendants executed another Agreement to Sell dt. 01.05.1987, which is Ex. PW1/4, and thereafter the possession of the suit property was handed over to the plaintiff on 01.05.1987.
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 8
21. It is further deposed that the GPA dt. 19.03.1990 was executed by the defendants in favour of the plaintiff, authorising them to manage the suit property, to possess and enjoy all the ownership rights in respect of the same and also that the GPA was duly registered, which is Ex. PW1/5.
22. It was also deposed that while assessing the suit property by the NDMC for the purpose of Property Tax, the defendant had filed objections, raising the plea that the suit property had already been sold and transferred in the name of the plaintiff, and the defendants have no concern with the suit property. The objections to the Collector are Ex. PW1/7, and the another given to the Assistant Secretary (Taxes) is Ex. PW1/8.
23. During the course of examination of the plaintiff's witnesses, certain objections were raised on the document exhibited on the ground of mode of proof, in relation to Ex. PW1/3 which was the Certificate of Income Tax and for the Ex. PW1/7 & PW1/8 which were the copies and not the original.
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 9
24. It is observed that for proving the entitlement with respect to the transfer of the suit property, the plaintiff was not required to prove the certificate of Income Tax, as the Agreements to Sell dt. 06.11.1986 Ex. PW1/2 and dt. 01.05.1987 Ex. PW1/4, were sufficient to prove the contract between the plaintiff and the defendant with respect to the sale of the suit property. Also the letters / objections Ex. PW1/7 & PW1/8 were the documents of the defendants, as they were placed by the defendant before the above authorities, and the copies placed on record by the plaintiff are sufficient to show the existence of such documents, and the contents of true attested copy of the said document are sufficient to prove these documents. Thus, the objections are decided accordingly.
25. At the time of the crossexamination of PW1, the exhibited documents were not disputed or reverted and also that PW1 has denied the question that the defendant No. 1 was a Public Charitable Trust. PW1 has also admitted that he has not filed any suit for specific performance with respect to the suit property against Sardar Daljit Singh. This witness has admitted that the House Tax of the property was in dispute on date.
26. It is observed that the substantive part of the testimony of PW1 in relation to the execution of documents of sale, i.e., Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 10 Ex.PW1/1 & 4 remain unrebutted, establishing that the defendants had executed the Agreements to Sell, and also nothing contrary have proved by the defendants, to the facts established by the plaintiff that the sale consideration of Rs. 18 Lacs in totality was paid to them, and that the possession of the suit property was handed over to the plaintiff on conclusion of the Agreement to Sell.
27. PW1 has produced a witness PW2 Ms. Gulshan Bajaj for the purpose of corroboration of the document Ex. PW2/1, a paper dt. 11.05.1987, who has deposed in the Court that she had surrendered her rights to M/s. Glory Construction Company, i.e., the plaintiff, after receiving the Demand Draft of Rs. 12 Lacs, and also that she had relinquished her tenancy rights with respect to the suit property in favour of the plaintiff and had sublet the property to Vijaya Bank for consideration of Rs. 12 Lacs as goodwill. This witness was not cross examined by the defendants despite opportunity given.
28. The plaintiff has examined Sh. Ishwar Dass Kashyap as PW 3, who was an official from NDMC and had appeared with the summoned record pertaining to the suit property, and deposed that the House Tax Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 11 was deposited by Sh. Daljit Singh but as care of (C/O) new purchaser M/s. Glory Construction Pvt. Ltd. This witness has proved the Tax Receipts Ex. PW3/1 to 6, and also admitted that a particular sum of amount was due with respect to the suit property.
29. The plaintiff has also examined Sh. Keval Dass, as PW4, another official from the NDMC, who proved that the Transfer Duty of Rs. 32,000/ was paid by the plaintiff for Glory Construction Pvt. Ltd. and copy of entry was Ex. PW4/PA.
30. Thus, the plaintiff through its evidence has duly proved that there was a contract for the sale of the suit property in their favour vide two sale agreements dt. 06.11.1986 and 01.05.1987. It is also established on record that the possession of the suit property was handed over on conclusion of such agreement, and that the plaintiff had applied by paying the Transfer Duty to the NDMC for mutation of the suit property in their name.
31. Thus, it is clear that not only the contract of sale of the suit property between the plaintiff and the defendant was executed, but the Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 12 possession was handed over on conclusion of such contract. Thus, on Ex facie, there appears no need of filing of any suit for any specific performance by the plaintiff against the defendant as the contract had already been concluded and executed upon.
32. The unrebutted testimony of PWs establishing these facts duly proved not only the sale of the suit property but also the execution of such contract after delivery of possession to the plaintiff.
33. It is well settled principle of Law that all the facts in the testimony of the witnesses that remain unrebutted, can safely be treated as proved and established on record. The reliance is placed on the judicial opinion expressed in;
i) Sri Chand and Shivan Das Vs. The State 28 (1985) DLT 360
ii) Ganpat Ram Khosla Vs. Kishen Lal, Vol. LX1958 PLR 349
34. In agreement to establishment of such facts, the document Ex. PW1/7 & 8 which relate to the defendants, who had filed an objection to the Collector, NDMC and an appeal to the Assistant Secretary (Taxes), NDMC, the factum of sale and transfer of the suit property to the plaintiff gets strengthened when the relevant para of Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 13 document Ex. PW1/7 and 1/8 of the averments of the defendants are read and reproduced, as below:
(Extracts from Letter dt. 17.03.1990 of the defendant Daljit Singh addressed to the Collector, NDMC, Ex. PW1/7) "I have sold D 74, Regal Building, which was in occupation of Vijaya Bank w.e.f. 01.05.1987, and you have been intimated vide our letter dt. 04.05.1988. The new buyer of the said premises is M/s. Glory Constructions (P) Ltd., C 642, New Friends Colony, New Delhi."
(Extracts from Letter dt. 12.02.1991 of the defendant Daljit Singh addressed to the Assistant Secretary (Taxes), NDMC, Ex. PW1/8) "74D (A. B. Enterprises): This property D 74 has been already sold out to M/s. Glory Constructions (P) Ltd. through its Managing Director Shri T. R. Anand , C 642, New Friends Colony, New Delhi and I have no concern with the aforesaid property as the sale deed has been already executed and the possession of the same has been already given along with title and leasehold right to the said purchaser M/s. Glory Constructions (P) Ltd. The purchaser has been already moved for mutation and transferring the property in his name to the N.D.M.C. I am not liable to pay the house tax in this respect and the demand be raised from the said purchaser. I request the N.D.M.C to delete my name from the house Tax Record/Register."Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 14
35. The defendant through the sole testimony of N. S. Suri DW1, could not revert the facts above established by the plaintiff in respect to the contract of sale and handing over of possession by the defendant.
36. On the basis of above observations on Law and facts, the Court is of the considered view that the plaintiff has duly established that the defendants are liable to transfer all their rights, title and interests in the suit property to the plaintiff. Thus, issue No. 1 is decided in favour of plaintiff and against the defendant No. 1.
Issues No.2 & 3
Whether the defendants have right to revoke the power of attorney dated 19th March, 1990 vide letter dated 13th July, 1995? If so, its effect.(OPD/OPP).
& Whether the agreements for sale are not binding upon and enforceable against the defendant No.1? (OPD).
37. The onus of proving these issues were on both the parties, as the plaintiff's suit is for declaration of the GPA under reference to be declared legal and valid and revocation of such GPA as illegal and invalid. Whereas the defendants are contesting the suit on the basis of revocation of such power of attorney.
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 15
38. Here it is worth clarifying that in the array of parties, there are four defendants viz. the defendant No.1 the Trust , the defendant No.2 Sardar Daljeet Singh, defendant No.3 Smt. Amarjeet Kaur and defendant No.4 Sh. N.S. Suri. During trial defendants No.2 and 4 have been proceeded exparte and the suit is contested only for defendants No.1 and
3. The issue is framed on the plea of defendants in the written statement filed on behalf of defendants No.1 and 3, and no written statement has been filed by defendants No.2 & 4, on record.
39. It is also worth mentioning that defendant No.1, the Trust was to be represented through its founder and chairman Sardar Daljeet Singh, who is defendant No.2, who has been proceeded exparte. The written statement filed for defendant No.1 is signed by one Romesh Sharma as Trustee and by Amarjeet Kaur as Trustee, and not as defendant No.3. The written statement is placed on record only on behalf of defendant No.1 and not for defendants No.1 and 3.
40. In this manner defendants No.2,3 & 4 have not placed their contra pleadings to the plaint, as there is no written statement filed on behalf of defendants No.2, 3 & 4 on record.
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 16
41. The plaintiff to discharge its burden has examined total number of four PWs as mentioned above in issue No.1, and Ld counsel Sh. P.K. Dham, in support of its contentions for issue No.2 has relied on the law settled in the following cases:
1. Seth Laon Karan Sethiya Vs. Ivan E. John and ors. AIR 1969 SC 73
2. Harbans Singh Vs. Shanti Devi, 1977 RLR 487
3. Ramesh Mohan Vs. Raj Krishan & Ors., Vol. LXXXVI 1984 PLR 211
4. Prem Raj Vs. Babu Ram, 1991 RLR 458 .
42. It is submitted on behalf of plaintiff that vide agreement to sell dated 6th November, 1986 Ex.PW1/2, the suit property was agreed to be sold to the plaintiff for a total consideration amount of Rs.18.00 lakhs, out of which Rs.25,000/ was to be paid as earnest money and the balance of Rs.17.5 lakhs was to be paid within six months. Also that on payment of the earnest money on the date of execution of first document, and the balance within six months, another agreement for sale Ex.PW1/4 was executed in favour of the plaintiff, and also a General Power of Attorney dated 19th March, 1990 Ex.PW1/5 was executed which was irrevocable.
43. Ld. Counsel for the plaintiff contends that the General Power of Attorney dated 19th March, 1990, as per clause 21 is expressly Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 17 irrevocable, and it cannot be revoked by the executor in view of the law settled in Seth Laon Karan Sethiya Vs. Ivan E. John and others, AIR 1969 SC 73.
44. Ld. Counsel further urges that in view of the provisions of Section 202 of Contract Act, if a person owning a property executes an agreement of sale and executes an irrevocable power of attorney, then he cannot cancel or revoke power of attorney, as an interest and right has been created in the suit property in favour of such person. Ld. Counsel relies its contentions on the law settled in Harbans Singh Vs. Shanti Devi, 1977 RLR 487 and contends that Section 54 of the Transfer of Property Act protects such rights.
45. Ld. Counsel has further raised his contentions to establish the issue that in case of agreement to sell, if the vendor receives the sale consideration and in pursuance of the same delivers the possession of the suit property, specifically providing the power of attorney as irrevocable, then the vendor continued to be the agent despite of any cancellation of such power of attorney as per the protection given under Section 54 of Transfer of Property Act, 1882. For this contention he has placed his Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 18 reliance on the judicial opinion expressed by Punjab and Haryana High Court in Ramesh Mohan Vs. Raj Krishan, Vol.LXXXVI1984 PLR 211.
46. It is further contended by learned counsel that as per the provisions of Section 202 of Contract Act, once a power of attorney is executed for consideration, then such power of attorney cannot be revoked or canceled, in view of the law settled in Prem Raj Vs. Babu Ram, 1991 RLR 458.
47. On appreciation of evidence on record, it is observed that the facts regarding the execution of the agreement to sell Ex.PW1/2, the receipt of total consideration amount of Rs.18.00 lakhs from the plaintiff, the agreement for sale Ex.PW1/4 and General Power of Attorney dated 19th March, 1990 Ex.PW1/5, in favour of Sh. T.R. Anand, are duly established on record through the documentary evidence produced in the court and through the ocular testimony of PW1 Sh. T.R. Anand examined in the Court. It is also observed that the execution of these documents or receipts of the sale consideration are not in dispute nor questioned by the defendant contesting the suit. Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 19
48. Thus it is duly established on record that there was a contract of sale of the suit property between the defendant No.1 and the plaintiff, for a sale consideration of Rs.18.00 lakhs, duly paid by second party and received by first party and also a General Power of Attorney was executed in favour of one Sh. T.R. Anand, that contains a clause No.21 that reads:
21. This attorney is irrevocable.(extracts from GPA Ex.PW1/5). THIS general power of attorney is executed on this 19th day of March 1990, by Lady Sir Sobha Singh Educational & Charitable Trust through its Shri N. S. Suri s/o M.S. Suri R/o G 74 Sujan Singh Park, New Delhi, the trustee of the said Trust, Regal Buildings, Cannaught place, New Delhi at present at G74, Sujan Singh Park, New Delhi in favour of Shri T.R. Anand son of Sh. B.R. Anand, Regal Buildings, Connaught Place, New Delhi as pur General Attorney for us, and on our behalf to do the following acts, deeds and things with respect to property known as D74, Regal Building, Connaught Place, New Delhi:
49. I have also gone through the facts and law referred in the above cited authorities.
50. The Apex Court in Seth Loon Karan Sethia's (Supra) Case held that:
"Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 20 matter of the agency, the agency cannot, in the absence of any express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked."
51. Here at the cost of repetition, I would like to reproduce the provisions of Section 202 of the Indian Contract Act, 1872: "202. Termination of agency, where agent has an interest in subjectmatter.--Where the agent has himself an interest in the property which forms the subjectmatter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
52. When the provisions of Section 202 of Indian Contract Act, 1872 are applied to the facts of the instant case and also in the light of the judicial opinion expressed by the Apex Court in the above cited authority, it is observed that in this case, the documents Ex.PW1/2 & 4 are clearly a contract, within the definition of Section 10 of the Act, and the provisions of Section 202 of the Act are applicable, and as the execution of the documents are not disputed, the possession was handed over, the contract was concluded. The General Power of Attorney containing the irrevocable clause makes it clearly and undoubtedly irrevocable, that cannot be cancelled by any act of the other party.
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 21
53. Further I agree to the contentions of Ld. Counsel for the plaintiff that Section 54 of the Transfer of Property Act, 1882 protects the interest in the property in favour of one who gets an irrevocable power of attorney in respect of the suit property, in pursuance to an agreement of sale, as held in Harbans Singh Vs. Shanti Devi, 1977 RLR 487, Ramesh Mohan Vs. Raj Krishan & Ors., Vol. LXXXVI 1984 PLR 211 and Prem Raj Vs. Babu Ram, 1991 RLR 458, relied by learned counsel for the plaintiff, besides the provisions of Section 202 of the Indian Contract Act and Section 54 of the Transfer of Property Act are fully applicable.
54. The defendant has contested the issue of revocation of GPA vide notice dated 13th July, 1995 on the sole ground that: The documents Ex.PW1/2 & 4 and the GPA Ex.PW1/5 are not binding nor having any legal force in view of the provisions of Section 44 & 45 of Transfer of Property Act and 47 & 48 of Indian Trust Act, 1982 being the first party to such contract was a public Trust.
55. Ld. counsel for defendants No.1 & 3 urges that in view of the provisions of Section 47 of Indian Trust Act, a Trustee cannot delegate his duty either to a cotrustee or a stranger and that Cotrustees cannot act Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 22 singly as they are the joint owners, and not the coowners as envisaged in Sections 44 & 45 of the Transfer of Property Act, and that the provisions of Section 53 A or Section 54 of TPA cannot provide protection in case of a contract entered into on behalf of the Trust by a Trustee or anyone on its behalf.
Ld. Counsel has relied on the authorities:
1. Janakirama Iyer & Ors. Vs. P. M. Nilkanta Iyer & Ors. AIR 1962 SC 633
2. Duli Chand Vs. Mahaveer Pershad Trilok Chand Charitable Trust, AIR 1984 Delhi 145
3. Akram Mea Vs. Secuderaad Municipal Corporation. AIR 1957 ANDH. Pra. 859
56. I have maticulousely perused the provisions of law referred in the above cited authorities in the light of facts stated therein and also the facts of the case in hand, in the light of contentions of the counsels for the parties.
57. Before making any observations on the judicial opinion expressed by the Higher Courts for applicability in the instant case, I would like to reproduce the relevant provisions of Indian Trust Act and the Transfer of Property Act: "Sections 47 & 48 of Indian Trusts Act, 1882
47. Trustee cannot delegate --A trustee cannot delegate his Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 23 office or any of his duties either to a cotrustee or to a stranger, l unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
48. Cotrustees cannot act singly.--When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. Sections 44 & 45 , 53 A and 54 of TPA
44. Transfer by one coowner.--Where one of two or more coowners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwellinghouse belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
45. Joint transfer for consideration.--Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 24 nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.
53A Part performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part therefor, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,
54. "Sale" defined.--"Sale" is a tranfer of ownership in exchange for a price paid or promised or partpaid and part promised.
Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 25 by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
58. It would be worth to reproduce the relevant extracts of the documents of contract to sale the suit property Ex.PW1/2 & 4 and of GPA and also of the deed of trust/deed of settlement Ex.DW1/1 & 2 of the defendant No.1 Trust and also some extracts from the pleadings of defendant No.2 made before the House Tax Authorities Ex.PW1/7 & 8:
"1. I have sold D74 Regal Building which was in occupation of Vijaya Bank w.e.f. 1.05.1987 and you have been intimated vide our letter dated 04.05.1988. The new buyer of the said premises is M/s Glory Construction (P) Ltd. C642, New Friends Colony, New Delhi. (Extracts from Ex.PW1/7) 74D (A. B. Enterprises) : This property D 74 has been already sold out to M/s. Glory Constructions (P) Ltd. through its Managing Director Shri T. R. Anand , C 642, New Friends Colony, New Delhi and I have no concern with the aforesaid property as the sale deed has been already executed and the possession of the same has been already given along with title and leasehold right to the said purchaser M/s. Glory Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 26 Constructions (P) Ltd.
59. So far as the legal proposition is concerned, on the literal interpretation of Provisions of Section 47 of the Indian Trust Act, this provision provides that `a Trust cannot delegate... unless (a) the instrument of Trust so provides...'
60. Similarly provisions of Section 48 of the Indian Trust Act reads, `When there are more Trustee than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides'.
61. In interpreting both these provisions, the Apex Court in re Nizam's Jewellery Trust AIR 1980 SC 17 clarified the position of the law governing the execution of trust in case of a private trust, where there are more trustees than one. The judicial opinion was that all must join in the execution of the Trust. The concurrence of all is, in general necessary, in a transaction affecting the trustproperty and that in order to bind the trust all must act together. Further it is clarified that they must act unanimously in making a sale or a contract of sale, unless it is provided otherwise by the terms of the deed.
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62. Now on going through the prints of the terms of deed of trust and the deed of settlement of the trust Ex.DW1/1 & 2, clauses 17,18 & 19 of document Ex.DW1/1 read with clauses 23, 25 and 28, if read in totality, provides it clearly that a priority and a special privilege has been given to the founder Chairman of the Trust Sardar Daljeet Singh, over and above other trustees to grant any general or special power of attorney in favour of any person or trustees and grant him or them such powers and authorities as they may deem fit.
63. It is clearly mentioned in para 17 that the power of attorney shall be always granted by the chairman of the trust, but in pursuance of a resolution of a trust.
64. It is further mentioned that the founder chairman shall have an unfettered authority and discretion as regards investments or employment of funds. The other clauses/terms are in consonance to such view to give special privilege in all the acts, activities and aspects of the trust with respect to the founder chairman Daljeet Singh.
65. When the deed of the trust along with the deed of settlement of trust are read together, it gives a clear impression that as per the oral Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 28 partition Sardar Daljeet Singh was having exclusive right/interest and possession of a number of properties including the one in the suit and he created a trust in the name of his father known as Sir Shobha Devi as educational and charitable trust and as such, deeds were prepared by him as executant of document Ex.DW1/1 & 2, special privilege and rights and discretions were given to him, over and above the other trustees, to enter into the contracts or to execute a general or special power of attorney in favour of any person.
66. Thus the general power of attorney dated 19th March, 1990 created in favour of one Sh. T.R. Anand, the representative of the plaintiff company was not to be eclipsed by the provisions of Section 47 or 48 of the Indian Trust Act as both these provisions clearly provide an exception to the terms of the instrument of the trust.
67. Here it is worth to mention that the defendant has not produced any contrary document to show that Sh. N.S. Suri, the trustee was not authorized by the Founder Chairman or by the Board of Resolution for executing the General power of attorney in favour of Sh.T.R. Anand or for executing the documents relating to contract of sale of the suit property.
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 29
68. Rather the plaintiff has produced two documents Ex.PW1/7 & 8, both filed and signed by Sardar Daljeet Singh, the founder chairman addressing the collector NDMC and the Assistant Secretary Taxes, NDMC, pleading that:
1. I have sold D74 Regal Building which was in occupation of Vijaya Bank w.e.f. 1.05.1987 and you have been intimated vide our letter dated 04.05.1988. The new buyer of the said premises is M/s Glory Construction (P) Ltd. C642, New Friends Colony, New Delhi.(extracts from PW1/7)........
2. 74D (A. B. Enterprises) : This property D 74 has been already sold out to M/s. Glory Constructions (P) Ltd.
through its Managing Director Shri T. R. Anand , C 642, New Friends Colony, New Delhi and I have no concern with the aforesaid property as the sale deed has been already executed and the possession of the same has been already given........
69. In response to the house tax of the suit property, stating therein that the Trust was not liable for the house tax, after the sale of the suit property vide documents Ex.PW1/2 & 4.
70. It is further mentioned that document Ex.DW1/2 at clause 2 clearly mentions that the trust shall be liable to pay the house tax in respect of the share and interest in the property, thereby convey to the trust with effect from 31st March, 1970.
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 30
71. All these facts brought on record, duly established during trial, if taken together, makes it clear that the trust defendant No.1, through its founder chairman Sardar Daljeet Singh, the defendant No.2 had duly authorized one of its trustees Sh. N.S. Suri to execute not only the sale agreements Ex.PW1/2 and 4, but also GPA Ex.PW1/5 in favour of Sh.T.R. Anand, who was the second party to the contract of sale of the suit property, whereas Sh. N.S. Suri was acting `on behalf of the Trust as the first party' to such contract for executing all these three documents with respect to the suit property.
72. It is worth to mention that Sardar Daljeet Singh is defendant No.2 and Sh. N.S. Suri is defendant No.4 and both have opted not to contest the suit as they have been proceeded exparte without filing their pleadings to contest the plaint.
73. It is also worth to mention that defendant No.1 is also to be represented through its founder chairman Sardar Daljeet Singh, who has opted not to contest the suit and the contra pleadings (WS) are filed by one Sh. Romesh Sharma and Amarjeet Kaur (defendant No.3), as two trustees of the trust. If for the sake of argument, it is assumed that all the Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 31 trustees were to act as coowners, then these two trustees have also not placed any resolution of the Board of Trust that the defendant No. 1 Trust is being represented by them, as the WS has been filed on behalf of defendant No.1 i.e. the Trust and not in the individual capacity by defendant No.3 as one of the Trustees.
74. It is also observed that defendant No.4 Sh.N.S. Suri, has opted not to contest the suit and has not filed any pleadings and was proceeded exparte but was produced as DW1 to depose as fourth defendant, and a trustee of defendant No.1, and not as a witness authorized by the trust to depose on behalf of defendant No.1 Trust. In this manner the defendant No.1 has not placed any evidence of its own and defendant No.4 who was proceeded exparte has filed his evidence without any pleadings i.e. WS.
75. It is also not being clarified during trial as to who was Romesh Sharma who signed the WS as one of the Trustee, as the Court could not lay its hands of any documentary evidence filed on behalf of defendants to establish that Sh.Romesh Sharma was one of the trustee.
76. Now come to the authorities relied by learned counsel of the Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 32 defendant. It is observed that the law settled in the case cited as AIR 1962 SC 633, is not applicable to the present facts and circumstances where the facts are entirely different from the facts of this case and on the face of the terms of instrument of trust, wherein it is clearly mentioned that the founder chairman of the Trust had unfettered discretion and privilege position with regard to investment or employment of funds or when there was a special provision or clause to create a general or special power of attorney in favour of trustees or trustee or any person (may be stranger) then the instant case is covered within the exceptions to the provisions of 47 and 48 of the Indian Trust Act. The case referred in the contentions of the learned counsel for he defendant was absolutely based on the different facts where two out of the three trustees executed certain documents without obtaining consent of the other trustee and the beneficiary of the trust questioned such act.
77. In the instant case, the documents of sale and GPA was executed by the trust as first party, represented through Sh. N.S. Suri and in favour of Sh. T.R. Anand representing the plaintiff as second party, and such sale was confirmed by its founder chairman Sardar Daljeet Singh, when on oath he made the pleadings before the house tax authorities pleading on behalf of trust that the trust was not liable for the house tax Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 33 after sale of such suit property. It is reminded that the terms of the deed of trust gives unfettered powers and discretion and a privilege to the founder chairman to employ funds or to issue special power of attorney or general power of attorney in favour of any person. Any resolution of board passed before such authorization, could have been placed, by the defendant to prove the contrary, as such document cannot be assumed to be in possession of the plaintiff, who were sure and certain about the conclusion of the contract of sale, when not only the possession of the suit property was handed over but also a general power of attorney was executed in their favour.
78. Further at the cost of repetition, it is mentioned that through the evidence of PW2 it is being proved that a larger amount of Rs.85,65,527/ is still pending to be paid to the housetax authorities, and that the plaintiff could not pay the said amount because of pendency of this suit, and trust has not paid for its pleadings that the suit property has been duly sold to the plaintiff.
79. Thus the authority relied upon by ld. Counsel of the defendant is found nonapplicable to the facts and circumstances of this case and the provisions of Sections 47 & 48 of Indian Trust Act, do not Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 34 invalidate either the documents of contract of sale or the general power of attorney. Similar observations can be made on the other authorities relied by ld. Counsel for the defendant, on the face of the express terms of instrument of trust.
80. Thus on the basis of above discussed law and facts it can safely be decided that the general power of attorney dated 19th March, 1990 was not only duly executed in favour of Sh. T.R. Anand on behalf of the trust, defendant No.1 but was also having an irrevocable clause that makes it binding on defendant trust, and by no act, it could be revoked or canceled.
81. It is further observed that the GPA Ex.PW1/5 was a duly registered document, and it was established on record that such document was executed on behalf of trust through Sh. N.S. Suri in favour of Sh. T.R. Anand containing an irrevocable clause. The cancellation or revocation, as per the nature of document, was not allowed, in view of the above observations on the basis of law settled. Also the defendant has failed to produce any document of revocation that was executed by the Trust or on behalf of the Trust against the GPA Holder Sh. T.R. Anand and the legal notice dated 13th July, 1995 of an advocate, on behalf of trust Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 35 only communicates a revocation and cancellation of GPA dated 19th March, 1990, and such communication itself cannot take shape of a formal revocation of a document i.e. GPA duly executed on behalf of Trust.
82. Thus the documents Ex.PW1/2 and 4 and GPA Ex.PW1/5 have legal force to bind the parties of the contract stated therein having all legal consequences of a contract and it is also established that GPA Ex.PW1/5 was an irrevocable document that could not be revoked or canceled.
Thus the issues no.2 & 3 are decided in favour of plaintiff. 83. ISSUE NO. 4
"Whether the plaintiff has not performed part of his obligation under the alleged agreement to sell? If so, its effect.(OPD)"
In view of the findings on issues No.1,2&3, it is observed that plaintiff has duly established that they have performed their part of obligation under the agreement to sell, and proving the sale consideration of an amount of Rs.18.00lakhs have been duly paid in terms of documents Ex.PW1/2 & 4 and no part of obligation of the plaintiff left unperformed. Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 36
84. The stand of the defendant is that such amount was never used by the trust, and was kept in the safe custody, is of no concern to the plaintiff, as that amount was admittedly received by the trust and this plea clearly admits that such amount was a part of the fund of the trust. Whether it was used or not by the trust, has no legal consequence to give effect to the documents of agreement to sale that envisages the sale consideration of Rs.18.00 lakhs to be paid by the plaintiff.
85. Thus issue no. 4 is decided in favour of plaintiff and against the defendant.
86. ISSUE No.5 Relief.
On the basis of findings on issues No.1 to 4, the suit of plaintiff is decreed as follows: a. The plaintiff is entitled for a decree of declaration in its favour declaring the General Power of Attorney dated 19th March, 1990 to be irrevocable, legal, valid and subsisting and Sh. T.R. Anand is declared as lawful attorney of the defendant. b. Further a decree of declaration declaring impugned notice dated 13th July, 1995 as well as the purported revocation dated 28th June, 1995 (if any, as no such document of revocation Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 37 dated 28.06.1995 exhibited in the Court) for revocation of the GPA dated 19.03.1990 to be illegal and invalid.
c. The plaintiff is entitled for a permanent injunction against the defendant restraining the defendants his agents etc. from canceling/revoking the GPA dated 19th March, 1990 executed by the Defendant in favour of Sh. T.R. Anand and to interfering, obstructing or disturbing the peaceful possession, actual or constructive of the plaintiff in respect of the suit property or any part thereof.
d. The plaintiff is also entitled to a decree of a permanent injunction against the defendant, restraining the defendants his agents etc. from enforcing its letter dated 08.11.1995 and/or demanding and collecting the rent and other dues from any of the tenants and other occupants of the suit property.
Announced In the open Court (Dr. Archana Sinha)
5th Day of March, 2011. Addl. District Judge,
Central04, Tis Hazari Courts,
Delhi. 05.03.2011
Suit No. 000384/08/96 Glory Construction Vs. Lady Sir Shobha Singh Edu. Page No. 38